1 August 2017
Attention Anne Beach
GPO Box 536
Hobart TAS 7001
Draft Mount Wellington Cable Car Facilitation Bill 2017
GENERAL COMMENTS AND RECOMMENDATIONS
Legislation is not necessary
The State Government has not provided a convincing justification for the Draft Mount Wellington Cable Car Facilitation Bill 2017 (Draft Bill). The TCT argues that the legislation is not needed for the purpose of facilitating the construction and operation of a cable car and is, in fact, a political tactic to provide an advantage to the state government in the lead up to the state election. This is a grave misuse of the Parliament.
The Draft Bill essentially does three things, all of which are not necessary:
- Exempts the cable car proponent from the requirement to obtain landowner consent.
- Provides for land and airspace to be compulsorily acquired;
- Allows the Minister to grant authority to undertake site visits and testing to prepare a development application.
The Hobart City Council has stated clearly in media reports that it’s General Manager has not refused to provide the Mount Wellington Cable Car proponent with a letter of consent to make a development application. Rather, the HCC has said that the proponent has provided insufficient information regard the proposal to enable the General Manager to provide it’s consent.
If sufficient information is provided to the HCC, and taking into account that consent is provided only to allow a development application to be made (it does not imply or grant any development approve), it is highly likely that land owner consent would be provided.
Given that a cable car is specifically allowed for in the Wellington Park Management Plan and the Hobart Interim Planning Scheme, acquisition of the land from the HCC is only justified to remove the need for the HCC to provide landowner consent. We assert that there is no reason to believe that HCC will not provide land owner consent, therefore there is no need for acquisition of land from within Wellington Park.
The legislation provides for the Minister to provide authority to the cable car proponent to undertake assessments and testing required to prepare an application for a permit under the Land Use Planning and Approvals Act. As described in response to Section 7 of the Draft Bill, this essentially exempts the proponent form any proper controls that might limit the impacts of these preparatory activities and these powers even extend to private land. This is an extraordinary over-reach by the state government and quite unnecessary. There are proper processes in place at the moment for a proponent to seek approve from the HCC to under-take assessments and these should be adhered to by the proponent.
The only reason that the State Government is proposing the Draft Bill is to make it look like it is removing obstacles to the cable car proceeding, when in fact there are no such obstacles.
RECOMMENDATION: There is no need for the Draft Bill and the TCT recommends that the state government withdraws it.
Deceptive claims regarding public services
The Draft Bill is deceptive in that it tries to have the acquisition of land for the purpose of constructing and operating the cable car treated as if it were providing a public service (see comments and recommendations under Section 5). The cable car is not a valid example of infrastructure that provides a public service and the Government’s attempt to have it treated as such, in order to justify compulsory acquisition of council owned public land, is a perversion of the purpose of the Land Acquisition Act 1993.
The proposal to acquire public land for a private commercial development is a dangerous precedent that, if allowed to succeed, may be replicated across Tasmania.
Impact on other development and use
The proposed legislation has the potential to inhibit other development within parts of the Wellington Park. If land is acquired for the purpose of constructing the cable car, it is hard to see any other private developer or the Hobart City Council being willing to initiate a new development or use or the upgrade of existing facilities in an area within or close to the land covered by the acquisition order. It is certain that the cable car proponent will want to use land at the summit and at the Springs and therefore, even before a acquisition order is approved, other developers and the HCC are unlikely to initiate any further development in or near these areas.
SPECIFIC COMMENTS ON THE DRAFT BILL
Section 3. Interpretation
Section (a) of the definition of ‘project’ refers to ‘one or more cable cars’. It may be the intention of those who drafted the Draft Bill that this definition should allow for more than one proposal to be included within the definition of ‘project’.
RECOMMENDATION: We recommend that the definition be amended to clarify that the Bill only refers to one cable car.
Section (b) of the definition of ‘project’ refers to ‘the construction of facilities related to the operation or use of such cable cars’ but there is no definition of facilities. This could enable a wide range of develops to be considered that are only loosely related to the cable car, contrary to the expectations of the general public.
RECOMMENDATION: We recommend that the word facilities be strictly defined or that specific related ‘facilities’ be listed in the Bill.
Section (b) of the definition of ‘project land’ refers to ‘any airspace to which an aerial easement relates’. This provision relates to airspace above private land as well as above the Wellington Park.
RECOMMENDATION: We recommend that the Draft Bill be amended to clarify that the definition of project land refers only to airspace above the Wellington Park. Any approval for use of airspace above private land is to be obtained separately from private landowners.
Section 5. Application of certain provisions of the Land Acquisition Act
Section 5(1) states that:
Part 1A of the Land Acquisition Act 1993, and any other provision of that Act that is relevant to the operation of the Part, applies in relation to project land as if the project were a service prescribed for the purposes of paragraph (i) of the definition of infrastructure in section 7A of the Land Acquisition Act 1993.
Part 1A, Section 7A of the Land Acquisition Act 1993 states that ‘infrastructure means any structure, facility or work arising in connection with the provision to the public or a section of the public of services relating to’, and then includes a list of purposes that it could relate to, including section 7(A)(i) ‘any other service which may be prescribed’.
This means that the cable car is to be treated under the Land Acquisition Act as providing public services and the category of service is the miscellaneous category identified in Section 7A(i).
Currently there are no criteria in the Act to guide when acquisition will be in the public interest and this enables the minister to designate any service as being a public service. In the absence of valid criteria we do not believe that the cable car can legitimately be treated as infrastructure providing a public service and most members of the ‘public’ would agree with us. The proposed cable car is a commercial development that will be operated at significant cost and many people will not be able to afford to use it. It is assumed that the road to the summit of Mount Wellington will be retained and therefore the cable car is not required for those wishing to use mechanized transport to get to and from the summit.
The Draft Bill proposes an incorrect and in proper use of Section 7A of the Land Acquisition Act. The Draft Bill seems designed to disguise land acquisition that is for private commercial use as being for the provision of a public service.
RECOMMENDATION: This concern provides further support for our general recommendation that the Draft Bill be abandoned.
Section 7. Minister may issue authority
Section 7(3) states that ‘Despite any other Act, a person may enter land, and carry out activities on the land, under and in accordance with an authority granted under subsection (1).’
It seems that this provision means that the proponent can do anything they wish within the limits of the authority granted by the minister under subsection 7(1). This provision could limit the application of other relevant acts. An authority could relate to providing access for highly disturbing activities such as taking soil samples or drilling into the soil or rock in areas that may have significant natural and cultural heritage. It is uncertain whether additional permits under the Threatened Species Protection Act or other relevant acts would be required or not. The Draft Bill does not require that the Minister makes any assessment before deciding on conditions that may be applied to the authority.
RECOMMENDATION: The TCT recommends that Section 7 be removed and that the existing process for requesting approval for undertaking assessments that are required to prepare a development application be retained.
Section 7 provides for the minister to grant ‘an authority to enter land’ where it is required to prepare an application for a permit and does not restrict the land to land within the Wellington Park. Section 7 could apply to private land and there is no requirement for the private land owner’s approval.
RECOMMENDATION: If Section 7 is retained, the TCT recommends that it be amended to ensure that an authority to enter land is restricted to land within the Wellington Park.